Help on the way for rural areas? Fix to water ruling is critical

Last fall, a state Supreme Court ruling in a water case severely curtailed economic development in rural Washington and hurt families who were just following the rules. Known as the Hirst decision, it was a major hit to areas that aren’t a part of the Seattle-area tech boom.

The case, which originated in Whatcom County, centers on how local governments approve well permits in rural areas. The court ruled in Hirst that, under the Growth Management Act, counties cannot issue permits based on Dept. of Ecology rules, as they’d been doing for years. Instead, applicants or local governments now must prove through an expensive hydrologic study on a case-by-case basis that an individual well would not affect in-stream flows or more senior water rights holders.

This is the sort of court decision that is begging for a legislative fix. If it stood, the long-term effect would be to make building a home in rural Washington even more expensive. The short-term effect has been a serious slowdown of development and building in some areas.

Court’s decision is hurting families
The court’s ruling has left families holding the bag. A Senate committee on Tuesday heard from Zach Nutting, a house framer from rural Whatcom County who was following all the rules in developing his five acres to build a home for his wife and four daughters.

When the Hirst decision came down, Nutting, who had already sold his current home, was told by the county that his house project could not go forward. Now, he continues to occupy his previous home while the new owner is living in the front yard. He told the committee, “We will continue to be technically homeless, because we are thousands and thousands and thousands of dollars into this project.”

Nutting grabbed the committee’s attention when he got down on his knees and begged senators to fix the problem that has left his family in the lurch. Another property owner testified that she “might find out that our property has no value whatsoever.”

A fairer, more predictable system needed
Leaving families like Nutting’s in limbo is terribly unfair. Sen. Judy Warnick (R-Moses Lake) is advancing a bill to fix the issue, SB 5239. Warnick wrote:

“We face a situation where people in rural areas who don’t have the luxury of hooking up to city water now have very few options. We are one Washington, but the realities faced by the communities I represent sometimes don’t get the attention they deserve. We are talking about families who will now have to pay tens of thousands of more dollars to get water because the state Supreme Court has taken decades of water law and turned it on its head.”

Under Warnick’s bill, counties could go back to using Ecology rules for issuing permits, as they were able to do before the Hirst ruling. This is an important step forward to make the process fairer and more predictable.

As the Capital Press notes, “Domestic wells consume 1 percent of the state’s water supply.” These decisions need to be made from a wider perspective, and one that takes into account the overall use of our water supplies – not individual hydrologic studies on a permit-by-permit, house-by-house basis.
-Rob McKenna

Rob served two terms as Washington’s Attorney General, from 2005 to 2013. He successfully argued three cases before the U.S. Supreme Court and negotiated three of the largest consumer financial protection settlements in national history, all involving mortgage lending and servicing. He is a recognized leader in the development of consumer protections on the internet, in data protection and privacy regulation.